Cadman v Mosman Municipal Council [2023] NSWLEC 1170

Cadman v Mosman Municipal Council [2023] NSWLEC 1170

Because the development control order had a statutory basis under Item 3 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979, and s 8.18(4)(f) gave the Court broad power on the appeal to make such other order with respect to the development control order as it thought fit, the agreed orders extending time for compliance and providing for cessation of the order upon satisfaction of conditions were within the Court's proper functions. Section 34(3) of the Land and Environment Court Act 1979 therefore required the Court to dispose of the proceedings in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
13 April 2023
Procedural Posture
Class 1 Appeal Against a Development Control Order / Final Orders Following S 34 Conciliation Conference Agreement
Outcome
Appeal upheld; orders made in accordance with the parties' agreement.
Legal Topics
['development Control Order' 'demolish Works Order' 'conciliation Conference' 'development Application' 'building Information Certificate' 'unauthorised Building Works']
['planning and Environment Law' 'land and Environment Court Procedure'] ['development Control Order' 'demolish Works Order' 'conciliation Conference' 'development Application' 'building Information Certificate' 'unauthorised Building Works']

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Procedural Posture

Class 1 Appeal Against a Development Control Order / Final Orders Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ["Whether the Court could make orders in accordance with the parties' s 34 agreement extending the time for compliance with the development control order and providing for the order to cease operating upon satisfaction of conditions." 'Whether s 8.18(4)(f) of the Environmental Planning and Assessment Act 1979 empowered the Court to make orders with respect to the development control order as agreed.']

Ratio Decidendi

Because the development control order had a statutory basis under Item 3 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979, and s 8.18(4)(f) gave the Court broad power on the appeal to make such other order with respect to the development control order as it thought fit, the agreed orders extending time for compliance and providing for cessation of the order upon satisfaction of conditions were within the Court's proper functions. Section 34(3) of the Land and Environment Court Act 1979 therefore required the Court to dispose of the proceedings in accordance with the parties' agreement.

Court Disposition

Appeal upheld; orders made in accordance with the parties' agreement.

Orders

  • ['The appeal is upheld.' 'The time for compliance with Orders 1-3 of the Development Control Order dated 20 September 2022 is extended initially for six weeks to permit the applicants to lodge the development application referred to in the notation in (1)(a) above.' 'If the applicants lodge the development...